TNAG-2387-FCO40-3469-Extradition-from-the-UK-to-Hong-Kong-case-of-Lorrain-Esme-Os-1991 — Page 50

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4.

as the Divisional Court held in the applicant's last, fourth, habeas corpus application."

with

The Commission then deals (on pages 13 and 14) subsidiary points which were not the subject of argument at the oral hearing. First, the applicant had complained of a breach of Article 5(3) because of the refusal of bail. The Commission agreed with the Government that Article 5(3) not applicable, but went on to state the following:

was

"Nevertheless, given the primordial importance

of the right to liberty ensured by Article 5 para.1 of the Convention, the Commission may examine whether the refusal of bail to an individual, even if his detention falls within Article 5 para.l (f) of the Convention, could be said to be unreasonable arbitrary, thus affecting the general notion of lawfulness, which is a common thread throughout

or

the provisions of Article 5 para.1 of the Convention."

Article 5 (1) (f) covers the detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation, as well as a person against whom action is being taken with a view to extradition. The Commission's comment quoted above makes it clear that the detention of any such person may be tested in Strasbourg to see whether it is unreasonable or arbitrary (compare Article 9 of the International Covenant on Civil and Political Rights, with its prohibition of "arbitrary arrest or detention").

5. Finally, the Commission deals with the complaint that the applicant will receive an unfair trial in Hong Kong. After considering the Court's statement in Soering concerning the possibility that, exceptionally, an issue might arise under Article 6 by the return of a fugitive to a place where he has suffered or risks suffering flagrant denial of a fair trial, the Commission found that the facts of the application did not disclose a risk that the applicant would suffer flagrant denial of a fair trial in Hong Kong.

6.

a

All in all, this seems a very satisfactory decision.

I can find no hint of criticism of any of the Governmental authorities involved. This is, of course, the second application to Strasbourg by Mr Osman: his first (which concerned the China angle) was rejected by the Commission on 13 March 1989. No doubt he may well try to bring a further application at some stage, but I think the present decision gives us reason to hope that any such further application will have no effect on his

return to Hong Kong.

Your cuf

M C Wood

Legal Advisers